Legislating Toxicity

First item on your shopping list: sippy cups for your toddler. Will they have the ones made without bisphenol A (or BPA), which the state of Connecticut recently banned from use in food containers and baby products? In the housewares section, the overwhelming "new shower-curtain smell" reminds you of all you've read about the off-gassing of volatile organic compounds, or VOCs. Next, you head to the health and beauty aisles, where the ingredients lists on the shampoo bottles and hair dyes and eyeshadows are a chemical stew of worrisome-sounding parabens and synthetic fragrances.

In recent decades, much attention has been paid to the health risks posed by large-scale environmental pollutants and toxins. Now, increasing attention is being paid to toxins that hit even closer to home, substances found in an endless list of the products we use in everyday life: carpets and paints, sunscreens and mascara, toilet cleaners and furniture polish, baby bottles and rubber duckies.

While the names hardly roll off the tongue, conscious consumers can't help but be aware of the warnings associated with ingredients like phthalates, parabens, volatile organic compounds. And though not all of the research is conclusive (something chemical manufacturers, among others, are quick to point out), there's certainly a large number of persuasive, scientifically solid studies that link toxic exposure to serious health problems: cancer, asthma, birth defects, reproductive and developmental problems, Parkinson's disease.

Yet despite these findings, there's very little testing or regulation of chemicals in consumer products in the U.S.—particularly when compared with the European Union, which has instituted especially tight regulations in recent years.

A proposed Massachusetts law would move the state toward more stringent regulations. The "Safer Alternatives to Toxic Chemicals Act" would require manufacturers to replace commonly used toxins with safer alternatives wherever feasible, and would offer financial and technical support to make the switch. Backers say the bill would protect public health and help businesses compete in a global market. Industry groups, however, fiercely oppose the bill, arguing that it would create more costs and bureaucracy and would drive manufacturers away from Massachusetts.

But in the end, it's a budget crisis that poses the most immediate threat to the bill. The recently passed state budget eliminated a line item that funded the state Toxic Use Reduction Institute, which works with industries to reduce their use of dangerous chemicals and which would provide the technical assistance under the proposed new law. While anxious TURI staffers hope funding will still be found, in this economic climate, there are no guarantees—leaving both the Safer Alternatives bill, and the important work already being done by TURI, in an extremely vulnerable position.

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The Safer Alternatives bill was drafted by the Alliance for a Healthy Tomorrow, a coalition of about 160 health, environmental, labor and religious groups. Its primary sponsors are Rep. Jay Kaufman (D-Lexington) and Sen. Steven Tolman (D-Brighton).

The bill would expand on the Toxic Use Reduction Act, a 1989 law aimed at preventing pollution by industries that use large amounts of chemicals. Under that law, the Toxic Use Reduction Institute, based at UMass Lowell, works with manufacturers to reduce toxics use and the generation of toxic wastes—for instance, by altering plant processes. The new law would extend those efforts to toxics in consumer products, using the support structures already in place, including TURI.

If passed, the law's first step would be to classify chemicals according to their health risks: high, medium or low hazard, or unknown hazard, said Elizabeth Saunders, environmental health legislative director for Clean Water Action, one of the coalition's founding organizations. Then, each year, several chemicals would be selected from the "high hazard" list for study. At issue: What are their health risks, especially to children and to the workers who handle them on a regular basis? Could alternatives do the same job? If there are alternatives, are they safer, and is it financially feasible to use them instead? If workable alternatives are identified, the state Department of Environmental Protection would then establish deadlines for manufacturers to make the switch.

In some cases, there are already known safer alternatives, according to TURI, which has identified potential substitutes for such highly toxic substances as lead, formaldehyde and perchloroethylene (or perc, a probable human carcinogen used in dry cleaning).

While the bill doesn't name which chemicals would be targeted first, Saunders expects it would initially focus on well-known chemicals such as BPA (linked to neurological and developmental problems), formaldehyde (found in consumer goods such as cosmetics and cleaners and described by the federal government as "reasonably anticipated to be a human carcinogen"), and phthalates (a family of softeners used in plastics and vinyl; at least one kind of phthalate is also classified as a likely carcinogen).

"There's so many things out there that could be addressed that it's not really important which ones go first," Saunders said.

But to get there, proponents will have to overcome stiff opposition from manufacturers and industry groups.When Saunders goes to the Statehouse to lobby legislators for support, she said, she finds that some believe the bill would be overly punitive to Massachusetts companies—the result, she said, of "campaigns of misinformation" by opponents.

Instead, Saunders said, "This bill is carefully crafted to protect public health, but also helps businesses." Companies would develop their own transition plans, and would get technical assistance from the state. They could also get loans or grants to pay for worker retraining or new equipment; that money would come from fees charged to companies that use toxic chemicals. Manufacturers could apply for waivers from the state if they believe there are no safer alternatives to the targeted chemical that would be economically or technologically viable.

"To be quite frank, this is really an industry-friendly bill," said Bill Ravanesi, regional director of the non-profit Healthcare Without Harm, and a founder of the Longmeadow Health and Environment Initiative, both members of the Healthy Tomorrow coalition. "It's got all kinds of flexibility and escape clauses. And if there's no safer alternatives, that's your 'get out of jail' card—you can keep using the junk."

Backers maintain the bill will help Massachusetts companies, which already do more than one-third of their trade with members of the European Union, compete overseas by helping them meet the stricter standards in the EU. Indeed, the bill was recently renamed "An Act for a Competitive Economy Through Safer Alternatives to Toxic Chemicals."

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Thanks, but no thanks, says Robert Rio, senior vice president at the Associated Industries of Massachusetts. To the drafters of the bill, he says, "We don't need your help. You're not out to help us."

AIM, an industry group that represents 6,500 Massachusetts employers, is the leading opponent of the Safer Alternatives act. "It's a really bad bill," Rio said. "We're already doing most of this substitution stuff in a very cooperative way," including through members' work with the Toxic Use Reduction Institute.

Rather than help Massachusetts manufacturers better compete, Rio said, the bill would put them at a disadvantage. Competitors from out of state will continue to use these chemicals, which might be cheaper than the alternatives required here, or might make better goods than the substitutes could. That, Rio said, would put Massachusetts companies at a disadvantage, and could cause them to stop manufacturing certain products. That, in turn, would further damage the state's ailing economy, resulting, for instance, in job loss.

Meanwhile, he said, companies from out of state or abroad could continue to ship in products with toxic chemicals. "Really, there's no way of stopping these chemicals from coming into Massachusetts," said Rio, who doubts regulators can or will inspect all incoming products.

If AIM believed the bill could help its members better compete in the European Union, he added, "we would be supporting it, wouldn't we?"

AIM doesn't oppose the bill because of a deep-seated love of toxic chemicals, Rio added. "I don't make any money when companies use more chemicals," he said. "If a company can use less chemicals, and use safer alternatives, we want them to do that, and I assure you the company wants to do that. … We've had members successfully transfer to safer alternatives, which we love. But you don't need another bureaucratic level to this."

Rio describes the Safer Alternatives bill as the work of activists who understand neither the manufacturing industry nor the true risks posed by chemicals, some of which he maintains are not as dangerous as supposed. "You get these activists who are really unfamiliar with the manufacturing process, who now say, 'We have something that's going to help you. We know your business better than you,'" he said.

"What they should do is go out and speak to companies, and see what happens when a company goes out of business," Rio continued. "Why would a company stay here and comply with these regulations? Why wouldn't I go make this in another plant [outside Massachusetts]? … And frankly, in five years, toxic chemicals won't be a problem, because most manufacturing will be out of state."

That kind of argument can strike fear in the heart of legislators whose districts are hungry for jobs (or whose campaign coffers rely on contributions from industry executives and lobbyists). Massachusetts' high taxes and existing regulations have already earned it a reputation for being "business unfriendly"—a reputation lawmakers are wary of reinforcing.

State Rep. Denis Guyer (D-Dalton), vice chair of the Joint Committee on the Environment, Natural Resources and Agriculture, told the Advocate it would be premature for him to comment on the bill before it reaches his committee. But, he said, "We want to make sure whatever laws we pass are a good balance between protecting the environment and protecting human health, and making sure we do not create a negative business climate in Massachusetts."

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To some, that balance has already tipped far too steeply in the direction of business interests—with dangerous results.

Ravanesi, of Healthcare Without Harm, puts much of the blame on Reagan-era deregulation that kneecapped agencies like OSHA and the EPA. "Now the chickens have come home to roost, and as a nation, we don't have the backbone to deal with it," he said. "Junk in the air, water, food, ground—now the day of reckoning is upon us."

Meanwhile, there are remarkably few safeguards in place. Many Americans assume that any product that appears on their store's shelves has undergone safety testing. They assume wrong.

"That's something most people don't understand," Saunders said. "Most of the chemicals we use in our daily life are not regulated for their chemical content."

Instead, federal laws are full of holes. The U.S. Consumer Product Safety Commission, for instance, tests products for safety hazards (for example, making sure that the straps on a highchair don't pose a choking risk), while the FDA does pre-market testing of new drugs. But the law does not require pre-market testing of other consumer products that contain chemicals, such as cosmetics, toys and home furnishings. According to the FDA, federal law "does not authorize FDA to approve cosmetic ingredients, with the exception of color additives that are not coal-tar hair dyes. In general, cosmetic manufacturers may use any ingredient they choose, except for a few ingredients that are prohibited by regulation." Meanwhile, the General Accounting Office has found that financial and logistical barriers hamper the EPA in its work evaluating chemical safety—leaving the agency to often rely on industry-provided data.

Critics maintain the government also relies on outdated information that doesn't reflect the latest research about the risks posed by chemicals. Instead, Saunders said, the government typically takes action against a specific chemical after it's been proven harmful. For instance, the pesticide DDT wasn't banned until the early 1970s, despite the fact that scientists had been warning of its health and environmental risks for several decades.

States can pass laws to restrict individual chemicals, such as Connecticut's new ban on the use of BPA in food containers, including baby formula cans and baby food jars. Minnesota has banned the use of BPA in baby bottles and sippy cups, and similar laws are in the process in California and Wisconsin.

In Massachusetts, activists are calling for a state ban on BPA in children's products. That could happen without going through the Legislature, since state law allows the Department of Public Health to regulate products that are hazardous to kids. While the Alliance for a Healthy Tomorrow says it delivered about 8,500 petition signatures to Gov. Deval Patrick calling for the ban this spring, it's yet to hear a response from the governor or DPH. (The debate over BPA is controversial. While there seems to be agreement that BPA can act as a low-level form of strogen in the body, there is some disagreement about the amount of BPA that leaches out of plastics and the threat it poses to human health.)

A DPH ban on BPA would have a fairly immediate effect—an important thing, given that babies and young kids are using these products at a crucial, and vulnerable, time in their development. But generally, a piecemeal approach to chemical regulation is far from ideal, especially given how long it takes to pass a new law in Massachusetts.

"Part of our goal here is to set up a comprehensive program… and not just go one chemical at a time," said Saunders. While the Safer Alternatives Act would, in fact, only address a few chemicals each year, "at least [we wouldn't] have to get a new bill each time," she said.

An earlier version of the Safer Alternatives bill made promising progress during the last legislative session. The bill passed unanimously in the Senate in 2008 but never came to a vote in the House. This time around, the bill is co-sponsored by about 100 of the House's 160 members and 25 of 40 senators.

Bill Ravanesi knows from experience how long these kinds of laws take to pass. And he does not underestimate the power of industry opponents, starting with AIM, on the state level, and the American Chemistry Council, which "will step in when AIM needs backup," he said. "They're a formidable force because they have a ton of money."

Still, Ravanesi believes industry groups will eventually recognize that the bill offers them real benefits. "Industry will become a driver of this bill, believe it or not," he said. "Not because it's the moral high ground, but because of the almighty dollar." As the EU tightens restrictions on chemical use, "we won't be able to ship this stuff to Europe. It will be too toxic."

Mike Florio, executive director of Western MassCOSH (the Coalition for Occupational Safety and Health), agrees that economic considerations will motivate industries to move toward safer chemicals. In fact, he said, many industries are already making changes, such as "green" dry cleaners who don't use perc.

These changes don't come easily, however. Companies sometimes complain that the substitute chemical doesn't work as well as the older version, or is not as cost-effective; the auto body industry, for instance, is moving toward water-based paints and fillers, but finding they have a longer drying time that slows down production, Florio said.

"To get the old timers—for a lack of a better term—to change their ways is quite a thing," he said. "It's a tough, uphill battle: 'We've been doing things this way for 100 years, and why should we change now?'"

They should change, Florio contends, because the old ways often have dire health effects, both for consumers and plant workers. At MassCOSH, he said, he sees people suffering from chronic health problems linked to workplace exposures, like asthma and chemical sensitivities. Those problems cost employers, too, in the form of healthcare costs and insurance claims.

"Sometimes the alternatives aren't as effective, or as cost effective, as the original, but in the long term it saves lives and prevents injuries," Florio said. "It all gets back to the bottom line."

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But there's another financial reality that could determine the fate of the Safer Alternatives bill. The fiscal 2010 state budget passed last month eliminated the earmark for the Toxic Use Reduction Institute, a crucial component of the bill. Instead, the budget calls for TURI's costs to be absorbed by UMass Lowell, where it is based.

An earlier version of the budget approved by the Senate would have funded the program at $1.2 million. TURI had received $1.67 million from the state in each of the previous two years.

Ironically, TURI brings almost twice that much in revenue into the state coffers, via fees charged to businesses that work with the agency. While the original 1989 Toxic Use Reduction Act called for that money to go directly back to TURI and two other departments involved in toxic-reduction work (MassDEP and the Office of Technical Assistance), the law was later amended to channel the money into the state's General Fund.

TURI officials believe that the program should be funded directly by the state, not by the university, which draws the bulk of its budget from student fees. TURI is not a college program, but a statewide program—one that is recognized for its work in improving the environment and supporting businesses, and that has served as a model for similar programs elsewhere.

Last week, a UMass Lowell spokeswoman told the Boston Globe that the university, faced with its own budget cuts, cannot afford to fund TURI.

State Sen. Jamie Eldridge (D-Acton), meanwhile, has said he'll fight to get the agency funded through a supplemental budget. "The most important point and value of the program is it has made Massachusetts families safer over the last two decades,' Eldridge told the Globe. "It would really be a blow to consumers and to the environmental community if this program were eliminated."

TURI's elimination could deliver a crippling, if not fatal, blow to the Safer Alternatives Act. But Saunders said it's too early to have that conversation; the priority right now is to save TURI. "To have it not funded going forward would just be a tragedy," she said.

Supporters of the act describe it as a potentially groundbreaking, proactive law. "We're in this to really create a new policy that changes how we address and think about the use of toxic chemicals," Saunders said.

Existing laws, she said, focus on establishing "acceptable levels" of harm. "Our goal is not a zero-risk society. That's not possible," she said. "But our goal is to say, 'Let's not look at how much harm it's OK for us to do,' but instead say, 'How much harm can we prevent?'"